Guest on Bain

David Bain’s first defence lawyer has emailed Justice Minister Judith Collins to say that, in his opinion, his former client had made a “damning admission” which in his view “shatters any suggestion of innocence”.

The email was sent by disbarred lawyer Michael Guest to the Minister of Justice on September 10, just weeks after she received a report from retired Canadian Justice Ian Binnie saying Mr Bain was “factually innocent” and should be compensated.

Mr Guest’s email became a factor in the decision to have Justice Binnie’s report peer reviewed. On September 26, Mrs Collins wrote to retired Justice Robert Fisher saying Mr Guest’s email, concerns from the police and her own issues “led me to consider that I need to proceed to this peer review”.

Mrs Collins confirmed the link to the Herald, saying it added to concerns raised by herself, the police and the Crown Law Office.

Mr Guest claimed in his email he was prompted to contact Mrs Collins after reading reports Mr Bain had been found “innocent”.

In a personal email, Mr Guest expressed his view to Mrs Collins which stated “finding that [Mr Bain] is innocent is not a correct conclusion”.

Mr Guest claimed he was freed from client confidentiality because of an earlier waiver by Mr Bain. He said he was concerned because neither he nor his co-counsel had been interviewed by Justice Binnie as part of the inquiry.

I would have thought that was sensible to do, even if you didn’t treat his views as determinative.

The claims focus on whether Mr Bain was wearing his mother’s glasses the weekend before the murders – the frame was found in his room and a lens in his brother Stephen’s room.

Mr Guest said he was told by Mr Bain he had been wearing the glasses. He said Justice Binnie could have found a way to take a different view on the evidence about the glasses “but, in my opinion, it shatters any suggestion of innocence”.

There seem to be two main possibilities. Either David Bain told the truth to his lawyer Guest, and later lied about it.

Or David Bain has always denied wearing the glasses the weekend before the murders, and his former lawyer has invented the story.

Honeybadger

Kimbo

@ flipper

Despite playing the man and not the ball in the first half of your post, and after wading tjhrough your disclaimer, and from the point where you wrote, “I have arrived at my view thus…”, I followed your train of thought, and you were building well, until…

“6. the retrial was largely ( I suspect) driven by the Crown being unable to present as they did in the mistrial, the five areas where the PC said there had been a substantial miscarriage of justice 7. Ergo, Bain was unjustly incarcerated for 13 years and suffered in other ways…”

“I suspect” is not a launching bad for “ergo”. Call Stead geriatric all you want. At least he can follow through with a consistent and logical train of thought.

And whether Stead read what the Privy Council had to say is irrelevant. They were ruling in regards to the legal process. They made the point that a JURY had to make a decison regarding “facts” which determine guilty or not guilty – something which obviously the PC declined to do.

But now we are beyond the point of weighing by “beyond reasonable doubt”, and on to weihing by “establishing innocence. They are different standards, with different tests, and different methods – as evidenced by the fact David Bain got to have his say to Binnie, rather than declining to testify as at the second trial. Stead therefore weighed the facts as he sees them (which the Privy refused to do!). Which means the initial premise of your flawed thread is wrong as well.

Kimbo

@ flipper

“Due process should prevail above all else in determining the outcome of discussion on Bain”.

No it shouldn’t (although it plays a part in the determination process), or at least is doesn’t if the DISCUSSION is concerning Bain’s claim for COMPENSATION, unless you get to magically erase and replace the original terms of reference for the Binnie inquiry, which are the same terms which also bind cabinet in respective of any compensation pay-out: –

“establish innocence on the balance of probabilities as a minimum requirement”.

Agree on ad hominem …. But Stead has lived on it, engaged in it, all his political life. 🙂

Withdraw “suspect.” No substitution necessary, Kimbo.

The Privy Council said much more, in relation to the totality of the Crown’s case, than simply that the COA should not “act” as a jury. And let us not forget the PC admission by Collins (now J.) on luminol and foot prints ,which destroyed the Crown’s case.

Without it all fails under our system. It would have failed Thomas had it not been for Williams, Gordon, Johnston, and Muldoon. And, I might add, eventually, Jim McLay.
Stet. 🙂

Say Kimbo,
Can you point me to the Statute that sets out the Cabinet procedure for compensation following unjustified incarceration? On the recommendation of Graham the then Cabinet decided not to accept the LC recommendation. A Cabinet policy was adopted. But it has no standing in statute law, does it? Neither do related Cabinet minutes, do they? We are talking here about Cabinet “policy”:, nothing more, are we not? 🙂

Honeybadger

Kimbo

@ flipper

“Due process?

Without it all fails under our system”.

Agreed. But when it comes to determining if Bain has established his innocence (not just ‘not guilty’ with the benefit of reasonable doubt), you rewind to the morning of 21 June 1994, establish and interpret the facts and likely probabilities that can be established existed then, and ignore the “due process” that came after.

Once you’ve done that, you decide if David Bain has established his innocence/established Robin’s guilt on the balance of probabilities at a minimum.

I’m not making the rules that cabinet has to follow. Just reporting them.

If this is about changing the cabinet manual, so that a person who is subsequently found ‘not guilty’ at a second trial, or has their conviction quashed as a result of an appeal, should AUTOMATICALLY receive compensation, then debate that. But don’t confuse that argument two with the Bain compensation claim.

Kimbo

@ flipper

“Without it all fails under our system. It would have failed Thomas had it not been for Williams, Gordon, Johnston, and Muldoon. And, I might add, eventually, Jim McLay”.

Hmm. A false analogy. With Thomas there was one clear piece of evidence (the cartridge case, which Sprott established beyond any but the most unreasonable doubt) could not have got there other than by being planted.

Other than the axle (which, once the planted cartridge case was in the play, also became suspect), there was NO physical evidence to link Thomas to the Crewe murders, let alone put him at the scene.

Also they didn’t have a 3rd Thomas trial so a jury could hear the new evidence (which the PC in the Bain appeal determined is the domain of a jury). Instead, the Crown exercised its prerogative by pardoning Thomas (something David Bain has never been granted) because a palpable miscarriage of justice due to the one incontrovertible piece of evidence had occurred. Thomas may have done it (and other than a few die-hards, no one now thinks he did), but on the basis of the facts that were now clear, there is no way Thomas should have even been charged in the first place. The cartridge case was a sine qua non.

They then paid Thomas compensation ex gratia, and THEN held a subsequent inquiry to determine, on the balance of probabilities how the cartridge case came to be in the Crewe’s garden (amongst other things, but THAT was the primary issue). Answer: It was deliberately planted by someone whom, due to the passage of time, and despite our suspicions, we are unlikely to ever convict for perverting the course of justice, as that person(s)y would get the benefit of any reasonable doubt it they were ever charged and tried.

Nostalgia-NZ

Scott Chris (4,693) Says:
January 5th, 2013 at 11:27 am

Shows your difficulties with this case Scott Chris, the word is ‘smear’ what came out of Robin’s wound was spatter. So he got that blood from somewhere else in the house that morning, wiped his own blood all over that towel in the laundry as well.

I don’t think either the Privy Council or Ian Binnie has suggested David Bain was framed. As for “hidden” evidence, there was evidence “hidden” from the second trial as well, at the request of the defence – maybe Bain should pay the Crown compensation out of the compensation it pays him?

muggins

Scott Chris
Re blood on Robin Bain’s hands.
He threw his left hand up and got blood spatter on it which smeared when his hand hit the carpet.
You know it makes sense,I know it makes sense.
But try telling that to the Davidbainites.

muggins

muggins

All the Law Lords of the Privy Council said was that a jury should hear all the new evidence.
They said they wished to make it clear that it’s decision imports no view whatsoever on the proper outcome of a retrial. Determination of guilt is not the task of the appellate courts.
They said that Bain must remain in custody until a retrial is ordered.
Amongst other things they said that David’s account was that he arrived home at around 6.42-6.43am.

Nostalgia-NZ

What do you think a MOJ is then Psycho Milt, a normal event in policing? At least you understand there was a strip search, we can move you up a class. I bet you’re relieved because there’ll be no hogging phone and getting hung up on.

So now spatter is smears is bloodwash. I thought people only threw hands up when they got shot in cowboy movies, somebody is on the wrong channel. Really helping out the Crown case though.

muggins

Isn’t it amazing how Robin Bain managed to wash his hands and yet still leave some blood on them. Anyone who believes that must live in cloud cuckoo land,
And where is the evidence that says that David Bain was strip-searched?
I know he says he was, but who can believe anything he says?

Honeybadger

Muggins, I admire the way Robin was able to wash his hands that morning (apparently) but still able to leave dirt on them from the day before, pretty clever of him really

STILL waiting for nostalgia to define the depth of blood in the silencer….should I hold my breath? both nostalgia and kanz go quiet when they are asked something persistently but they cannot answer unless it is with a lie…. ie, the 50/50 contract Joe Karam has with David Bain over any proceeds

muggins

One poster here believes that only rifles have barrels. I am here to inform him that silencers have barrels too.
But I agree that Robin Bain had smears of blood on his left hand which could well have gotten there when the blood spatter on his hand smeared when his left hand hit the floor.

Nostalgia-NZ

Honeybadger

blood in barrel? how deep? you keep saying ‘deep in the barrel’, so I am asking, again, please define the depth, otherwise I will just decide you are like kanz, and use abuse when you cannot answer a simple question, ie, the 50/50 contract, which he has never accepted, he cant have read Joe’s book yet, or thinks Joe was lying…

Kanz

In what way does it matter how deep in the barrel the blood was? It was inside the barrel. It can only get there from a contact wound shot. It can only have gotten there from the last shot.
Once again we would all know exactly where the blood was, and whose blood it was if Hentschell had known how to do his job, and if he had done his job properly. There was so very much that he cocked up.

Truthiz

Kanz

Truthiz (89) Says:
January 5th, 2013 at 9:45 pm

Blood definitely was inside the barrel, what is absurd about saying that? We will never know how deep it went because Hentschell didn’t know how to or didn’t do his job. That is the absurd part about it.

muggins

Kanz
Don’t be devious. A Davidbainite has been saying for yonks that there was blood deep in the barrel. There is no way he would know that. It is a myth perpetrated by a myth perpetrator.
But if it was Robin Bain’s blood,and we don’t even know that it was,then it got there because he was shot at close range,not because he committed suicide.
And Hentschel did do his job. He found smears of blood inside the barrel. He didn’t have to say how deep they were. The blood was probably just inside the barrel.

Kanz

muggins (868) Says:
January 5th, 2013 at 10:02 pm

It is you who is obfuscating (now there is a new word you can use over and over again). Hentschels case notes said “he found blood inside the barrel of the rifle” that is, the rifle not the silencer. Did he get yet another thing wrong, or is his memory fading?

Honeybadger

Kanz (404) Says:

January 5th, 2013 at 9:01 pm
Once again we would all know exactly where the blood was, and whose blood it was if Hentschell had known how to do his job, and if he had done his job properly. There was so very much that he cocked up.

so! there it is, you dont know where the blood was! at last, someone not scared of telling the truth! about time, thank you kanz

Kanz

Honeybadger (54) Says:

I said “exactly”, what do you not understand about that. Hentschel wrote in his case notes when he found it that it was “in the barrel of the rifle” he did not say inside the silencer, suppressor or whatever else. In the barrel of the rifle is clear, is it not? However long the silencer was (I don’t know for sure) the blood had traveled beyond that. Of course, that could be challenged if Hentschel were now to say “Bugger, put yet another mistake down to me, I got it wrong again”

Maxine

Dennis Horne

Judith Collins must do nothing, absolutely nothing. That is the best strategy now. It is Bain who must prove factual innocence on the basis of probability, not the state. Time is the great benefactor of truth.

Once the public see the injustice of oiling the squeaky wheel of Karam’s bandwagon, Collins can make up her own mind confident of public backing. It is a political decision after all, not a legal one, so she is perfectly entitled to do. Sure Karam will carry on like a rhinoceros charge, so what? The media doesn’t like backing the wrong horse, it’ll be a dead duck. The circus just left town. Karma.

It’s also a political decision in the political sense: Image. A strong woman who knows her own mind. Stands her ground. Knows how to do things. Gets things done. Come on, Mrs Collins, threaten the wimps with your handbag.

muggins

Kanz
Those case notes. Could you post them,please.
According to your illegal copy of the retrial transcript those case notes record that blood was found on the silencer,extensive smearing and traces of blood were found inside the barrel,positive. The word rifle is not mentioned.

muggins

Maxine
Judith appears to have flown the coop.
I don’t believe we have heard from her since I posted her message where she said she believed David was telling the truth when he said he saw Mark Buckley having sexual relations with a goat. I reckon she is about the only person in New Zealand who believes that story.
Maybe she is hanging her head in shame.

In terms of probability, Occam’s Razor suggests his blood was on the towel in the laundry because the bloke who shot him at very close range had some blood splatter to clean off the hand nearest the shot.

Dennis Horne

ross69

There is no evidence that Robin changed clothes…I mean, he was wearing a beanie and tracksuit pants and top, something which he presumably wouldn’t have worn to school let alone to meet his maker. In all likelihood, he did what he normally did on that fateful morning.

Honeybadger

I dont know if anyone here listens to the radio at night, but I put one on late last night as I was working, and it was all about Bain, most of the callers seemed to think he is guilty, only a mattering (three I counted) thought it was Robin. I dont know who the host was, but I would listen to him again, very balanced

Honeybadger

tsk, kanz….
by the way Kanz, what do you make of the fact, that David admitted wearing the glasses on the evening before the murders, and the fact one lens and the bent frame was found in his room on the morning he called the police, but the other lens was found in the room of his murdered brother, he admitted this fact to Michael Guest and Michaels co counsel beofre he testified, and then he told a blatant lie on the stand, perjury to say the least dont you think?

no evidence to say Robin shot himself, but enormous forensic evidence to show he was murdered, and that is what his death certificate says, ‘life unlawfully taken’

David Bain will not receive compensation, not only has he lied in court, he has also lied to Binnie re those glasses, shame David, shame

Judith

Good god, another person who likes to stretch the truth beyond all proportions!

Honeybadger, according to Guest, David admitted to wearing a pair of his mother’s glasses, he NEVER admitted to “and the fact one lens and the bent frame was found in his room on the morning he called the police, but the other lens was found in the room of his murdered brother”.

Now, perhaps you’d like to prove, firstly that the conversation with Guest ever occurred, because clearly his is a man with questionable standards (proven), and secondly, that if the conversation did happen, that David was informed exactly which pair of the two possible pairs, Guest was talking about ? Hmmmm? Will wait on that one, because even Guest hasn’t said he specified which pair.

Judith

Dennis Horne (240) Says:
January 7th, 2013 at 7:09 am

Changing clothes, covered in blood is obvious, the permeated pores would not have been in the poor lighting, and therefore his hands were probably only rinsed under the tap. (The police needed to bring in extra lighting to be able to see. Robin didn’t like paying power bills, and used to make sure all the bulbs were low wattage).

Judith

I appear to have been missed, and no I was not anywhere with my tail between my legs, but I’m sure you would all like to know exactly what I’ve been doing, and all going well, within about 23 days or so, you will 🙂

Rowan

Guest is a disgrace. Hardly new evidence this is been known for 18 years.
Oh thats right MG was the idiot lawyer who tried to get David to plead guilty to automisation or insanity in 1995, he conceded vital evidence of Hentschell (shown in 2009) to be totally false and tried to innocently explain critical evidence shown to be demonstratly false Jones, Weir etc. He has since been struck of for lying to a client. Joe Karams latest interview summed him up pretty well

Judith

Ross, Guest has both a personal and financial incentive for doing what has. That can be a big motivator for someone who has much ground to make up regarding his integrity. Strangely enough, his peers in general are appalled by this current episode. It appears rather than gain lost respect, he has slid further down.

Honeybadger

oooooooh, twist twist twist

David admitted to Michael Guest, and his co counsel that he was wearing THOSE glasses the night before the murders, those glasses Judith, remember the ones? the ones where the frame and ONE lens was in his room that morning and he asked for those glasses, the other lens was found in his murdered brother’s room. Now you can twist those FACTS as much as you like, spin spin spin all you want, but you cannot get away from the FACT he asked for those glasses, perjury much?

Honeybadger

Nostalgia-NZ

Nostalgia-NZ

‘Psycho Milt (916) Says:
January 7th, 2013 at 6:37 am
In terms of probability, Occam’s Razor suggests his blood was on the towel in the laundry because the bloke who shot him at very close range had some blood splatter to clean off the hand nearest the shot.’

You put a lot of faith in Michael Guest Psycho Milt, believe him without hesitation. Karam recently called him a cheat and a fraud.

As for the blood on the towel, it wasn’t spatter and it was fresh and in copious amounts. I can see you’re going the dotcom way, hopeful use of imagination. But by all means continue on with Robin set up David scenario, or the death scene. That matters more that information 19 years old that suddenly becomes new.

Nostalgia-NZ

”ross69 (1,730) Says:
January 9th, 2013 at 6:15 pm
Actually Rowan, Guest is permitted to practise law. Obviously you’re ok with David perjuring himself. But you still haven’t explained why an innocent person would do that. It makes you think, eh.’

Nostalgia-NZ

‘Chuck Bird (2,918) Says:
January 7th, 2013 at 9:20 am
I see the Herald has changes it mind on accepting comments for the Op Ed “CK Stead: Why judge was wrong on Bain”

Maybe that is because the public are changing their view about poor David.’

Should have been ‘properly cleaned’ above.

Maybe somebody told them that most of the negative comments were from your site Chuck. They wouldn’t need to look very hard to see the similarity between them and of course wouldn’t want the system manipulated by a small group that have multi voted in the past.